Rulemaking Training

November 10, 2016

Office of Administrative Rules

Goals today

  • Learn about administrative rulemaking

  • Learn about the proposed rule process

What is rulemaking?

What is a rule?

  • Written statement

  • Explicitly or implicitly required by law

  • Implements or interprets state or federal law

  • Class of persons or another agency

When does rulemaking happen?

  • When required by law (e.g., “The agency shall…”); or

  • When agency action:

    • authorizes, requires, prohibits an action;

    • provides, prohibits a material benefit;

    • applies to a class of persons or another agency; and

    • is explicitly or implicitly authorized by statute

Proposed rule process

Purpose

The proposed rule rulemaking process is designed to make permanent, substantive changes to the Utah Administrative Code.

Governing laws, rules, and orders

Types of proposed rulemaking actions

  • Enacting a new rule

  • Amending an existing rule

  • Repealing an existing rule

  • Repealing and reenacting an existing rule

Phases of the process

  • Preproposal phase

  • Proposal phase

  • Post proposal phase

Preproposal phase

Establishing need

  • Legislation

  • Internal agency review

  • Public comment

  • Agency adjudication establishing a principle of law

  • Petition to engage in rulemaking

  • Federal direction

Establishing need: legislation

Determining authorization

  • May be explicit

  • May be implicit, meaning “The only way I can do this thing the legislature wants is by writing a rule”

Information gathering

  • Administrative record

  • Affected persons

  • Small business fiscal impact

  • Fiscal and nonfiscal impacts

  • Fiscal impact on business, department head

Administrative record

  • Report of the agency’s decision-making process

  • Proposed rule text and the rule analysis form

  • Public comment received and recorded by the agency during the public comment period

  • Agency’s analysis of the public comment

Involve affected persons

Small business fiscal impact

  • Establish less stringent compliance or reporting requirements; or

  • Establish less stringent schedules or deadlines; or

  • Consolidate or simplify reporting or compliance requirements; or

  • Establish performance standards rather than design or operational standards; or

  • Exempt from all or any part of the requirements

Fiscal and nonfiscal impacts

Determine the fiscal and nonfiscal impacts and burdens a rule may directly or indirectly have on the following classes:

  • State budget;

  • Local governments;

  • Small businesses; and

  • Persons other than small businesses, businesses, or local governmental entities

What are fiscal impacts?

  • Any impact or burden that has a price tag (can be positive or negative):

    • Requiring the purchase of a piece of equipment

    • Requiring continuing professional education

    • Requiring data be submitted in a particular format

How to report

  • If possible, provide exact figures of the incremental cost or savings in dollars and clearly identify if it’s a cost or savings; or

  • If exact figures are not available, provide an estimate of the incremental cost or savings in dollars and clearly identify it as a cost or savings

Can’t determine fiscal impact

  • Provide a “reasoned narrative description of cost-related actions”; and

  • Explain why the narrative is substituted for the cost

There isn’t a fiscal impact

  • Explain how the agency determined there would be no cost or savings; or

  • Explain why the rule doesn’t apply to one or more of the classes

What are nonfiscal impacts?

  • Any impact or burden that doesn’t have a price tag:

    • Requiring information that persons may wish to protect (privacy issues)

    • Prohibiting forms of expression (speech, expression, or conscience issues)

    • Removing parental-notification requirements (parental rights in health, human services, or education issues)

State budget

  • Your agency

  • Other state agencies affected by your rule

  • Any other costs to the state (remember direct or indirect)

Local governments

  • Counties

  • Cities and towns

  • School districts

  • Special districts

Small businesses

Small businesses have fewer than 50 employees

Persons

  • A person is “any individual, partnership, corporation, association, governmental entity, or public or private organization of any character other than an agency”

  • Person includes nonprofit organizations

  • With regards to fiscal and nonfiscal impacts or burdens, person does not include small businesses, businesses, or local governmental entities

Compliance costs for affected persons

  • Only costs

  • Individualized (not aggregate)

  • Person here means any individual, partnership, corporation, association, governmental entity, or public or private organization of any character other than an agency.

Fiscal impact on business, department head

  • Must be comments by the department head

  • Comments should be written in first person

  • Comments may not be “I have no comment”

Who is the department head?

  • Division, office, or bureau that is a constituent part of a department: chief executive officer of parent department

  • Department: chief executive officer of parent department

  • Commission or a board created within a department: chief executive officer of parent department

  • Institution of higher learning: president of institution

  • Legislatively created function or constituent agency in the office of one of the five elected officers of the executive department: the elected officer

Fiscal and nonfiscal impact review

  • Review with:

    • Board or commission

    • Advisory or rulemaking power

Review by administrative rules coordinator

  • Rule’s language is necessary, logical, understandable, and concise

  • Interested persons have opportunity to participate

  • Standards within the rule “reflect consistent and sound…regulatory policies”

  • Rule is formatted according the Rulewriting Manual for Utah

Proposal phase

Prepare rule analysis

  • Purpose of the rule or reason for the change;

  • Summary of the rule or change;

  • Aggregate fiscal and nonfiscal information;

  • Compliance costs for affected persons;

  • Department head comments on fiscal impact on business;

  • Legal authority for the rule;

  • Comment date; and

  • May become effective date.

Purpose or reason

  • Why is the rule being made, amended, or repealed?

  • Report the determination you made earlier (from the preproposal phase)

Summary

  • Enough information that a reader can see what’s going on

  • Not so much information that the entire rule or amendment is repeated

  • If repealing the rule: a brief summary of the repealed rule

  • If repealing and reenacting: summary of substantive differences between the two versions

Cost questions

  • Report aggregate fiscal and nonfiscal impacts

    • State budget

    • Local government

    • Small businesses

    • Other persons

  • Compliance costs for affected persons

  • Department head comments regarding business

Comment date

  • Comment date must be no fewer than 30 calendar days after publication

  • Comment date must be no more than 113 calendar days after publication

  • Helpful table to help you calculate: Rulemaking time frames.

  • Comment date entered on rule analysis binds you to at least that date

May become effective date

  • Effective date may not be fewer than 7 calendar days after the close of comment

  • Effective date may not be more than 120 days after publication

Prepare the rule text

Three fundamental rules:

  • Simplicity

  • Consistency

  • Clarity

Guidelines for rule text

  • Keep in mind the purpose of the rule (avoid scope creep)

  • Outline the rule (to help structure it)

  • Write the rule in the present tense (the rule speaks to the enforcer and the object in the now)

  • Write in an active voice: identify an actor who does something

  • Couch actions and obligations in a positive rather than a negative construction

Guidelines for rule text (cont.)

  • Write in the singular rather than the plural

    • Helps with consistency and removes ambiguity

    • Rules of statutory construction indicate that the singular includes the plural

  • Use gender neutral language

  • Refrain from quoting statute in rule

Incorporation by reference

The method of making one document of any kind become a part of another separate document by alluding to the former in the latter and declaring that the former shall be taken and considered as a part of the latter the same as if it were completely set out therein.

The Free Dictionary-Legal Dictionary
— Incorporation by reference

What may be incorporated?

  • All or any part of another code, rule, or regulation that has been adopted by a federal agency, an agency or political subdivision of this state, an agency of another state, or a nationally recognized organization or association

  • State agency implementation plans mandated by the federal government for participation in the federal program

What may be incorporated? (cont.)

  • Lists, tables, illustrations, or similar materials that are subject to frequent change, fully described in the rule, and are available for public inspection

  • Lists, tables, illustrations, or similar materials that the director determines are too expensive to reproduce in the administrative code

How to incorporate by reference?

  • State that the referenced material is incorporated by reference

  • State the date, issue, or version of the material being incorporated

  • Define specifically what material is incorporated by reference and identify any agency deviations from it

Are prospective incorporations allowed?

No.

Word processor and file format

  • Don’t care what word processor; but

  • Make sure to save in Rich Text Format (RTF)

Structure: Purpose and authority

  • Follow the recommended structure of a rule found in the Rulewriting Manual for Utah

  • First section: purpose of the rule

  • Second section: authority for the rule (similar to the information provided in the rule analysis)

Definitions and the rest

  • Third section: Definitions (if necessary)

    • Define words, acronyms, and abbreviations that might not be widely understood or are being used in ways different than their original meaning

    • Do not redefine words, acronyms, abbreviations, or terms that have already been defined in the statute the rule implements

  • Subsequent sections: the body of the rule; the various subjects pertaining to the regulatory topic at hand

Numbering within sections

  • First level: (1) Arabic numeral in parentheses

  • Second level: (a) lower case letter in parentheses

  • Third level: (i) lower case roman numeral in parentheses

  • Fourth level: (A) upper case letter in parentheses

  • Fifth level: (I) upper case roman numeral in parentheses

  • Sixth level: (Aa) upper case letter and lower case letter in parentheses

Mark up in the rule text

  • Underline text you wish to add

  • Bracket and strike through text you wish to delete

  • Replacing words, phrases, sentences: bracket and strike through the material to remove, then immediately underline the replacement text

Example of text mark up

Formatting the top

  • Title, rule, and section numbers and catchlines appear in bold:

    R15. Administrative Services, Administrative Rules.

    R15-1. Administrative Rule Hearings.

    R15-1-1. Purpose.

Formatting the bottom

  • Annotative material at the bottom of the rule appears in bold

    KEY: administrative law, government hearings

    Date of Enactment or Last Substantive Amendment: June 1, 1996

    Notice of Continuation: September 21, 2010

    Authorizing, and Implemented or Interpreted Law: 63G-3-402

Formatting subsections

  • All subsections (paragraphs) begin with a tab; no indents (the right facing arrow represents the tab character):

    →This is text.

  • All subsections (paragraphs) begin with a subsection designator (remember sub-numbering earlier?) unless there is only one subsection in a section:

    →(1) This rule establishes procedures and standards for administrative rule hearings as required by Subsection 63G-3-402(1)(a).

Formatting subsections (cont.)

  • All subsections end by pressing the Enter key; the last subsection of a section is followed by a blank line:

    →(1) This is a subsection that also happens to be the last subsection of a section.¶

    R15-1-2. The Next Section.

Formatting tables

  • Tables are preceded by a blank line and begin with the word “TABLE” in uppercase and centered

  • Data columns are created using spaces; NOT tabs or the word processor table function

  • Each row ends by pressing the Enter key

  • The table ends with a blank line with a centered empty paragraph

A correctly formatted table

Formatting: special characters

  • No special symbols or letters from non-Latin alphabets

  • Superscript and subscript only:

    • When raising to a power: 103

    • When writing and equation: y=mx + b2

    • When expressing a series: x1, x2, x3…​xn

    • When expressing a chemical formula: H2O

  • No superscript to show an ordinal number: “the 3rd of the month”, not “the 3rd of the month”

Agency distributes the rule analysis

Either before or at the same time the proposed rule is filed:

  • All persons who have made timely request for advance notice of rulemaking;

  • All persons who by statutory mandate should receive notice;

  • All persons who by federal mandate should receive notice; or

  • All persons who in the judgment of the agency should receive notice.

File the rule analysis and text

  • Use eRules

  • Complete the form

  • Add the marked-up RTF file

  • Submit to the office

Publication and comment

Bulletin and Digest

  • Utah State Bulletin

    • Web publication; ≅ 1,000 page visits/month; full text (usually)

    • Paper publication from Legislative Printing Office; also full text (usually)

  • Utah State Digest

    • E-mail publication

    • Summary of Bulletin contents; no text

Accepting public comment

  • At least 30 days

  • Begin counting the day after publication

  • Helpful table at Rulemaking time frames

  • May hold a hearing during the comment period

Considering public comment

  • Consider all written comment submitted during comment period

  • Consider all comment provided at public hearings during the comment period

  • Seven-day evaluation period after close of comment

Administrative Rules Review Committee

  • Reviews rules for:

    • Statutory authorization

    • Compliance with legislative intent

    • Impact on the economy

    • Impact on government operations (state and local)

    • Impact on affected persons

Public petition for hearing

  • Ten persons, or group with ten members, or state agency

  • Petition received in writing not more than fifteen days after publication

  • Hold hearing no less than seven days nor more than thirty days after receiving petition

  • Always hold before the rule becomes effective

Post proposal phase

Adopting the proposal

  • Rules do not become effective automatically

  • Rules Do Not Become Effective Automatically

  • RULES DO NOT BECOME EFFECTIVE AUTOMATICALLY

To make a rule effective:

  • File a notice of effective date using eRules (this makes the rule effective and enforceable)

  • Notice must be received no earlier than seven days after close of comment; no later than 120 days after publication

  • Notice of effective date published in next issue of bulletin

Publishing the final rule

  • When effective, codified

  • Administrative code updates published monthly

Enforcing the rule

  • Enforceable as soon as made effective

  • Administrative Rules Review Committee (in a constituent-services role, as well as role described earlier)

  • Public petition to engage in rulemaking

  • Judicial review

Judicial review

  • Petition in district court

  • Court reviews the rule:

    • Violation of constitutional or statutory law

    • Agency authority to write the rule

    • Substantial evidence supporting rule—administrative record

    • Procedural validity

Rulemaking Resources

Online resources

Real people resources

  • Staff at the Office of Administrative Rules

  • Agency counsel

Thank you!